MADAN LAL Vs. SOHAN LAL

JUDGEMENT

(1.) THE facts giving rise to this revision may briefly be stated as under. Plaintiffs claim to be non-occupancy tenants under Madan Lal defendant-petitioner in respect of some 9 kanals and 11 marlas of agricultural land. Consolidation proceedings took place in this village. The defendant-landlord got certain area of land on repartition. Out of this land possession of the land on repatriation. Out of this land possession of the land comprised in Khewat No. 60 Khata No. 118 measuring 9 Kanals and 11 marals was given to the petitioner-landlord as the owner and to the plaintiffs as non-occupancy tenants thereof. Ganga Charan etc. , who were also proprietors in this village took up the matter before the State government under section 42 of the East Punjab Holding (Consolidation and presentation of Fragmentation) Act, 1948 and the Additional Director as the delegated of the State Government decided that the land allotted to Ganga Charan etc should go to the petitioner. The result of this was that the land of the landlord which was in the possession of the plaintiffs as tenants was taken possession of the Ganga Charan etc. , and thus they lost possession of the land which they were cultivating under the petitioners. According to the allegations in the plaint the plaintiffs were entitled to get possession of an equivalent area of land which the petitioners got which was originally allotted to Ganga Charan etc, The petitioners however refused to give them possession of any such area and hence they filed and the suit for possession of the land to the extent indicated above. A number of objections were taken in the written statement filed by the petitioners. Inter alia he urged that possession of khewat No. 60 Khata No. 118 as mentioned in paragraph 1 of the plaint was with the plaintiffs as tenants. He however denied that they had lost possession of the same and in the alternative pleaded that even if they had lost possession thereof they had no right to claim possession of any averred that in fact they had applied to the consolidation was dismissed and consequently there was no further remedy available to the plaintiffs. A preliminary issue was settled as follows: "whether civil Court has jurisdiction to try the suit. ?" the trial Court came to the conclusion that the suit essential was to establish the right of the plaintiffs essentially was to establish the right of the plaintiffs to possess land as tenants and that the suit did not fail in any of the categories in section 77 of the Punjab Tenancy Act, 1887, nor was it covered by further relied on a judgment of this Court in Parmanand v. Rakha AIR 1952 Punj 94, where it was held that to a dispossessed tenant two remedies were open: (1) within one year he could file as suit in a revenue Court under section 50 of the Punjab tenancy Act for possession in a civil Court within the period prescribed by the limitation Act. The Court also relied on Kundan v. Sardara Ramjilal 1956-61 Pun lr 208: (AIR 1959 Punj 206) for the proportion that section 44 of the East Punjab holdings (Consolidation and Prevention of Fragmentation Act 1948 did not bar the jurisdiction of the civil Court so are as questions three issues on merits including the issue as to whether the plaintiffs were entitled to possession of the suit-land and the issue as to what is the effect of the suit-land before the consolidation authorities and the rejection of the same. The defendant-landlord being dissatisfied with this has come up to his Court in revision.

(2.) IN the first place it was urged on behalf of the petitioners that the ruling reported as AIR 1952 Punj 94, on which reliance had been placed by the Court below, has since been overruled by a Full Bench decision of the this Court reported in Bhag Singh v. Jawahar Singh 1965-67 Pun LR 226: (AIR 1965 Punj 321) (FB ). The learned counsel for the respondent however contended that the case of the plaintiffs did not fall under section 50 as they had made no allegations of dispossession and consequently neither the Full Bench decision nor the decision in air 1952 Punj 94 had any application. Having gone through the plaint the substances of which has been reproduced above I am clearly of the view that there are no allegations of possession or dispossession and obviously therefore the provisions of section 50 and are not applicable. Admittedly only clause (g) in section 77 (3), First Group of the Punjab Tenancy Act can possibly be applicable but that refers to a suit by a tenant who has been is possessed under section 50 to get back possession. Obviously therefore section 77 or section 50 of the Punjab tenancy Act are not applicable.

(3.) THE next contention of the learned Counsel for the petitioner was that under sub-section (2) of section 23 of the Consolidation Act if all the owners and tenants do not agree to enter into possession as provided in sub-section (1) they would be entitled to possession of the holdings and tenancies allotted to them from the commencement of the agricultural year next following the date of the publication of the scheme and the Consolidation Officer shall if necessary put them in physical possession of the holding to which they are so entitled. * * * * *: